California Court of Appeal Jun 8, 2015 No. D066700Unpublished
Filed 6/8/15 P. v. Villesca CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066700
Plaintiff and Respondent,
v. (Super. Ct. No. FSB1104585)
BENITO VILLESCA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
William Jefferson Powell IV, Judge. Affirmed in part and reversed in part with
directions.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Benito Villesca was convicted of 25 counts related to the
sexual molestation of his daughter, Jane Doe, who was a minor at all pertinent times, and
one count of illegal possession of a firearm by a felon. Defendant was sentenced to an
aggregate prison term of 300 years to life, plus 156 years eight months. He appeals,
arguing: (1) his counsel should have sought dismissal of one of the four counts related to
acts of oral copulation upon a minor because the evidence presented at his preliminary
hearing did not support a fourth charge, and, in any event, the people failed to produce
substantial evidence at the trial that defendant orally copulated his daughter no less than
four times; (2) testimony from a forensic pediatrician, stating that her colleagues
concurred in her findings of evidence of sexual assault by vaginal penetration, violated
his federal Sixth Amendment right to confront testimonial witnesses, was inadmissible
hearsay and was prejudicial; and (3) two counts against him arise from a single incident
of molestation and sentencing on one of the counts should have been stayed under Penal
Code1 section 654.
As we explain, we agree with defendant that his counsel should have sought
dismissal of one count of oral copulation because the prosecution did not present
evidence at the preliminary hearing of four separate acts of oral copulation. We reverse
with instructions to dismiss one of the four counts related to oral copulation.
However, in all other respects we affirm defendant's conviction. Because the out-
of-court statements defendant challenges were not testimonial, they were not subject to
the confrontation clause, and, as information an expert relied upon, they were admissible
1 All further statutory references are to the Penal Code. 2
over a hearsay objection. The two counts of molestation defendant challenges were
based on separate and distinct acts and were not subject to section 654.
SUMMARY
Defendant sexually assaulted his daughter several times over an approximately
five-year period. His daughter, Jane, was born in August of 1997 and lived with Villesca
in San Bernardino, California along with her mother and her brother until defendant's
arrest in 2011. All of the known sexual assaults occurred when Jane was between nine
and 14 years old. Jane was 15 years old when she testified at defendant's trial.
A. The Molestations
Jane was mostly unable to give specific dates for when she was assaulted.
However, she was able to give specific details relating to some incidents and
approximations of when they occurred. Though Jane did not remember in detail every
incident of sexual abuse, she was able to give estimates of how many times defendant
forced her to participate in specific sex acts. Jane stated that defendant, over the five-
year period, forced his penis into her anus between seven and 10 times, penetrated her
vagina with his penis between two and three times, licked her vagina between two and
three times or "probably more than three times," and penetrated her vagina with his
fingers over 20 times.
The first incident of sexual abuse Jane could remember occurred when she was
approximately nine or 10 years old. Jane was in her bed when she woke up at night.
There was a towel placed underneath her body and her underwear had been removed and
placed on the floor. She caught sight of her father leaving her bedroom. Jane also
noticed a gooey white substance around her genitalia and an odor. Jane recognized the
3
smell, which she associated with an earlier incident where she walked in on her father
and her mother engaging in sexual intercourse. Jane took a shower to clean herself off
and went back to bed. She did not tell anyone what had happened.
Approximately two weeks later, Jane was home alone with defendant when he
grabbed her, took her to his bedroom and placed her on his bed. Holding her down with
her stomach against the bed and feet hanging over the edge, defendant striped off Jane's
clothes and began fondling her genitalia and inserting his fingers into her vagina. Jane
screamed for help, and defendant placed his hand over Jane's mouth to muffle her. After
the digital penetration, defendant inserted his penis into Jane's anus. Defendant
penetrating Jane's vagina and anus caused her pain. Jane also reported that defendant
licked her vagina during this incident, though she was uncertain as to when that occurred
in relation to the other sex acts.
While testifying at defendant's trial, Jane recalled another sexual assault that
occurred sometime when she was 10 or 11 years old. After arriving home from school,
defendant threw Jane down onto the living room couch, stripped off her clothes and
began inserting his fingers into her vagina. Jane recalled defendant licking her vagina
and penetrating her vagina with his penis during this incident. Jane also reported being
molested by defendant multiple times in her bedroom, but she did not testify to any
specific incidents except for one that occurred a couple of days prior to defendant's arrest.
Jane attempted to escape these molestations by sleeping in her brother's room, but
defendant would molest her there as well.
Defendant stopped molesting Jane during seventh grade as she entered puberty,
but he started assaulting her again in ninth grade. He would enter Jane's room at night
4
when her mother and brother were not home and fondle her breasts and genitalia. At this
time, defendant began threatening to disclose embarrassing journal entries to coerce Jane.
Jane testified that defendant had read her diary and made photocopies of an entry where
Jane referred to her cousin as a bitch. Defendant would leave copies in Jane's room with
messages written on them stating: "one more time." That same year, Jane discovered a
web camera that had been surreptitiously placed in her bedroom closet.
One of Jane's aunts was a social worker, and Jane kept her card pinned to a board
in her bedroom. Defendant was afraid Jane would reveal the molestations to her and
questioned Jane on whether she had revealed anything to her aunt or anyone else at least
five times, according to Jane's testimony.
Defendant used explicit threats of violence to control Jane, telling her that he
would kill her and her mother if she told anyone. Jane recounted two separate instances
during her ninth grade year when defendant brandished a gun and threatened to kill her if
she revealed the molestations. During the first incident, defendant took Jane to his
bedroom and began touching her. Jane resisted and, in response, defendant took a black
hand gun out of a drawer. He practiced firing blanks and told Jane that he would use that
gun if she ever told anyone about the molestations. During a second incident, Jane was
home doing homework in her brother's room when defendant came in with a silver hand
gun and told Jane that if she told anyone about the molestations, he would kill her, her
mother and anyone she told.
At least two incidents of sexual molestation occurred during the week preceding
defendant's arrest. Two nights before defendant's arrest, Jane was in her bed text
messaging her friend Gavin. Jane heard the door to the room close. She shut off her cell
5
phone and pretended to be asleep. Defendant was in the room and began touching Jane's
genitals. Jane then pretended to wake from her sleep, and defendant left the room.
A second incident occurred the following day, September 29, 2011. At trial, Jane
testified that defendant picked her up from school and took her home. He took her to his
bedroom and began fondling her genitals and penetrating her vagina with his fingers.
The penetration was painful; Jane begged defendant to stop and dropped to the floor in an
attempt to free herself. In response, defendant threatened to rape or sodomize Jane,
stating that he would "take it out and stick it in and make sure it hurts." On the same day,
Jane told her friend B.G. about the incident.
B. Investigation and Arrest
The following day, September 30, 2011, defendant sent Jane a sexually explicit
text message while she was in class. The message read:
"Hi, [Jane]. I feel that you are mad at me. Please don't be. This will all be over
with real soon. I told you when I get some of your shaved pussy, I will never ever do
anything else. I know you are not going to be willing, so I'm just going to take it from
you and it's a promise I'm -- I'm not breaking. Always remember that no matter what, I
will always love you. Erase this."
Jane forwarded the message to her friend, B.G. Jane had previously confided in
B.G. concerning defendant's sexual abuse. B.G. told her mother about the situation, and
B.G.'s mother contacted school authorities. At the moment B.G. received the text
message, she and her mother were at a school counselor's office discussing the situation.
B.G. showed the counselor the message, and Jane soon came to the office to explain the
situation further to school authorities. The police were called, and Jane was interviewed
6
by San Bernardino Police Officer Robert Richards at the school. Jane would later be
interviewed on video by San Bernardino Detective Chris Gray from the San Bernardino
Police Department. This video was shown to the jury at trial.
Defendant was arrested the same day by San Bernardino police. While searching
his home, police recovered two handguns matching Jane's descriptions from underneath
defendant's mattress as well as a web camera that had been hidden in Jane's closet.
During interrogation by San Bernardino Police Detective Anthony King, defendant
admitted to touching Jane's genitalia and anus under her clothes with his bare hand on
multiple occasions, the final incident occurring two days before he was arrested. He also
admitted placing a web camera in Jane's bedroom to observe her in the nude, sending
sexually suggestive text messages, and acknowledged ownership of the guns recovered
from his home. Defendant denied ever committing any penetrative sexual acts with Jane
or performing oral sex on her.
C. Trial Court Proceedings
Defendant was charged by the San Bernardino County District Attorney with 27
counts of sexual assault against his daughter. A firearm charge was also alleged.2 On all
2 The information alleged: 12 counts of aggravated sexual assault upon a child under age 14 when defendant was seven or more years older (§§ 261, subd. (a)(2), (6), 269, subd. (a)(1) [counts 1 & 2, rape]; §§ 269, subd. (a)(3), 286, subds. (c)(2), (3) & (d) [count 3, sodomy]; §§ 269, subd. (a)(4), 288a, subds. (c)(2), (3) & (d) [counts 4-6, oral copulation]; and §§ 289, subd. (a), 269, subd. (a)(5) [counts 7-12, sexual penetration]); five counts of committing a forcible lewd act upon a child under the age of 14 (§ 288, subd. (b)(1) [counts 13-17]); one count of sexual penetration of a minor over the age of 14 with a foreign object (§ 289, subd. (a)(1)(C) [count 18]); one count of sodomy by use of force (§ 286, subd. (c)(2)(A) [count 19]); one count of oral copulation of a person under the age of 14 and more than 10 years younger than defendant (§ 288a, subd. (c)(1) [count 20]); one count of sexual battery by restraint (§ 243.4, subd. (a) [count 21]); one count of committing a lewd act upon a child 14 years of age and who was at least 10 7
counts, the district attorney alleged defendant had suffered a prior serious or violent
felony conviction. Defendant pled guilty to the firearm charge during pretrial
proceedings and admitted to having previously suffered the prior conviction.
In addition to testimony from Jane, at trial the prosecution presented testimony
from Dr. Amy Young, a forensic pediatrician with the University of Loma Linda
Children's Hospital and associate medical director at the Children's Assessment Center
(the CAC). Dr. Young conducted a forensic examination of Jane on October 27, 2011.
Dr. Young examined Jane's genitalia. She found dimpling, scar tissue and other
indications that Jane had been sexually abused. Dr. Young testified at trial that these
injuries could have been caused by a penis or a finger penetrating Jane's vagina. Dr.
Young also examined Jane's anus but did not find any indications of abuse. During her
forensic examination, Dr. Young took photographs of Jane's genitalia and completed a
standard report setting forth her findings.
At trial, Dr. Young testified that she usually consulted with other doctors or nurse
practitioners on her team about her findings before completing the report. She also
testified that she would review her findings with other doctors and nurse practitioners
during weekly case review sessions. According to Dr. Young, the other staff members
who reviewed her findings at the weekly case review session agreed with her
conclusions.
years younger than defendant (§ 288, subd. (c)(1) [count 22]); one count of unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1) [count 23]); and five counts of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a) [count 24]). 8
Defendant did not testify at trial. The defense called as an expert witness Cari
Caruso, a registered nurse who had previously worked as a forensic sexual assault nurse
before starting her own business as a consultant. Caruso was critical of Dr. Young's
report, claiming Dr. Young failed to fill out the report in proper detail. She also criticized
Dr. Young's conclusions. Based upon her review of the photographs, Nurse Caruso
stated she saw no evidence of any sexual trauma.
Though defendant did not plead guilty to any of the sexual assault charges, during
her closing argument his attorney essentially conceded that Jane had been abused by
defendant. Defendant's counsel stated: "We may start with the idea that what has
happened here that there is no question that he's guilty. And I'm here to ask you to give
him a fair trial. I asked you that in the beginning and I ask you again, give him a fair
trial.
"He has told you what he has done. And this behavior is horrible. This behavior
is the type of behavior that should not befall any child. This behavior is horrific. But, I
ask you to think about what you've seen through this trial when you think about what
happened here and the fact that something horrible has happened to this child."
Defendant's counsel urged the jury to look at each charge in a critical manner.
Counsel argued that Jane's memories of what happened were likely colored by her
emotional trauma and called upon the jurors to pay attention to discrepancies between
what Jane told investigating police officers on the day of defendant's arrest and Jane's
testimony at trial.
The jury convicted defendant on all charges except for counts 1 and 2, which
alleged that defendant raped Jane. The jury could not reach a verdict on the charges of
9
rape, and a mistrial was declared as to those charges. As we indicated at the outset, the
trial court sentenced defendant to an indeterminate term of 300 years to life in prison plus
a determinant term of 156 years eight months.3 Defendant filed a timely notice of
appeal.
DISCUSSION
I
The first issue defendant raises on appeal is his contention that he was improperly
bound over on a fourth charge of oral copulation. He contends the evidence presented at
his preliminary hearing only supported three such charges. Defendant further contends
his attorney was ineffective in failing to object to the information charging him with four
counts of oral copulation. Alternatively, defendant contends he could not have been
convicted of the fourth oral copulation charge because the people failed to produce
substantial evidence at trial that a fourth oral copulation occurred.
We agree the evidence presented at the preliminary hearing did not support a
fourth oral copulation charge, that defendant's attorney erred in failing to object to trial on
a fourth charge, and that the error was prejudicial. We reverse defendant's conviction on
all four oral copulation counts, with directions that one of the counts be dismissed and
3 The trial court sentenced defendant as follows: on counts 3 through 12, the court imposed on each count a consecutive indeterminate term of 30 years to life; on counts 13 through 17 and counts 19 and 20, the court imposed on each count a consecutive term of 16 years; on count 18, the court imposed a consecutive term of 20 years; on count 21, the court imposed a consecutive term of two years; on counts 22 and 23, the court imposed on each count a consecutive term of one year four months; on counts 24 through 28, the court imposed on each count a consecutive term of four years. 10
that judgment on the three remaining oral copulation counts be entered and defendant
resentenced.
A. Additional Factual Background:
In an amended information filed on October 14, 2011, the San Bernardino County
District Attorney charged defendant with three acts of oral copulation (§ 269, subd. (a)(4)
[counts 4, 5 & 6, aggravated sexual assault of a child–oral copulation]) and oral
copulation of a person under 14 years old (§ 288a, subd. (c)(1) [count 20]).
At the preliminary hearing, Detective Chris Gray, who had interviewed Jane,
testified as follows:
"[Detective Gray]: . . . I asked her if [defendant] had ever made her orally
copulate him. She said that never happened. I asked her if he ever orally copulated her,
and she said that has happened.
"Q. Did she say how many times?
"A. I'd have to look. I believe a handful of times.
"Q. Would it refresh your recollection to look at your report?
"A. It would.
"[Prosecutor]: May he?
"The Court: That's fine.
"The Witness: I can't find it exactly. [¶] Well, she said three different times.
"Q. [Prosecutor:] On the oral copulation, him on her?
"A. Yes."
Detective Gray's testimony was derived from an interview he conducted with Jane.
11
B. Legal Principles
Section 1009 states in pertinent part: "An indictment or accusation cannot be
amended so as to change the offense charged, nor an information so as to charge an
offense not shown by the evidence taken at the preliminary examination." In discussing
this provision and the cases that have interpreted it, the court in People v. Burnett (1999)
71 Cal.App.4th 151, 165-167 (Burnett) stated: "Many cases illustrate the rule that a
defendant may not be prosecuted for an offense not shown by the evidence at the
preliminary hearing or arising out of the transaction upon which the commitment was
based. In People v. Fyfe (1929) 102 Cal.App. 549, 553, 555, upholding the trial court's
dismissal of charges not shown by the evidence at the preliminary hearing, this court
stated: 'The clear purpose of these enactments is to give the accused a preliminary
hearing either before a grand jury or before a committing magistrate, and to deny to the
district attorney the right to force a defendant to trial before a jury upon an information
which is not within the scope of the evidence taken. [¶] . . . [¶] . . . In declaring that an
information "cannot" be amended so as to charge an offense not shown by the evidence
taken at the preliminary examination, the terms of the section are mandatory. They are in
whole harmony with the provisions of section 8 of article 1 of the Constitution [now
section 14] requiring an examination and commitment by a magistrate as a prerequisite to
the filing of an information by the district attorney.'
"In People v. Kellin (1962) 209 Cal.App.2d 574, the defendant was charged with
grand theft on or about November 10, 1960; the evidence at the preliminary hearing
showed theft of a $2,093 check on November 10, 1960. At trial, the prosecution offered
evidence of theft of three additional checks on October 23 and December 8. After the
12
prosecution's case, the district attorney successfully moved to amend the information to
charge theft '"on or about the 28th day of October through the 28th day of December,
1960."' (Id., at p. 575.) Reversing the conviction, Kellin held the amendment 'allowed
the defendant to be charged and perhaps convicted of an offense not shown by the
evidence at the preliminary examination.' (Id., at p. 576.) The court noted that each of
the checks represented a 'separate and distinct transaction,' not related to the check which
was the basis of the order of commitment after the preliminary hearing and offered to
show a distinct theft. (Ibid.)
"In People v. Winters (1990) 221 Cal.App.3d 997, the defendant was charged with
possession for sale of methamphetamine and waived his right to a preliminary hearing.
During trial, the prosecution was permitted to amend the information to add a charge of
transportation of methamphetamine. The appellate court reversed the transportation
conviction, even though the evidence showed this offense arose out of the same incident
as the possession charge: 'We acknowledge that respondent's motion to amend the
information to add a count for transportation of methamphetamine may have come as no
surprise to appellant and would have conformed the information to the proof at trial, as
respondent argues here and argued below. It seems to us that is not the point nor helpful
to respondent. Section 1009 specifically proscribes amending an information to charge
an offense not shown by the evidence taken at the preliminary hearing. This rule has
remained virtually unchanged for over 80 years.' (221 Cal.App.3d at p. 1007.) In
Winters, because there was no preliminary hearing, the prosecution could not amend the
information to add a new charge."
13
In Burnett, the defendant was charged with and convicted of being a felon in
possession of a firearm. At his preliminary hearing, the prosecution offered evidence of a
single incident in which the defendant was in possession of a .38-caliber revolver; at trial,
however, the prosecution offered evidence that the defendant possessed both a .38-caliber
revolver in one incident and a .357-caliber revolver in a separate incident. Because no
evidence of the incident involving the .357-caliber revolver had been offered at the
preliminary hearing, the court found that an amendment to the information that permitted
the jury to find the defendant guilty based on either incident was improper and,
importantly for our purposes, that in failing to object to the amendment his counsel had
rendered ineffective assistance of counsel. (Burnett, supra, 71 Cal.App.4th at pp. 178-
179.) The court found that there was no conceivable tactical advantage in failing to
object to the amendment. (Id. at p. 181.)
C. Analysis
The Attorney General asserts that the evidence presented at the preliminary
hearing demonstrated probable cause that defendant orally copulated his daughter four
times because Jane's statements to the police were ambiguous as to how many times
defendant orally copulated her. This claim of ambiguity rests upon the notion that when
Jane told Detective Gray she had been orally copulated three times, she meant she had
been orally copulated "three times" in addition to the first incident she talked about
earlier in her questioning. Jane's statements to Detective Gray are in fact not ambiguous
at all in regards to how many times she had been orally copulated in total. Jane was
asked, "how many times do you think he's [defendant] licked your vagina?" She
answered, "three times." The detective then asked her, "Three different times?" and Jane
14
replied, "uh huh." Neither the phrasing of the questions nor Jane's answers indicate that
Jane was excluding the first incident of oral copulation from her answers and really
meant to say she had been orally copulated four times.
Importantly, Detective Gray's recollection of Jane's statements to him were the
only evidence at the preliminary hearing regarding how many times defendant orally
copulated her. Thus, there was no evidence presented at the preliminary hearing that
defendant orally copulated Jane a fourth time.
We recognize that when a defendant is accused of child molestation based upon
generic testimony from victims, "'at a minimum, a defendant must be prepared to defend
against all offenses of the kind alleged in the information as are shown by evidence at the
preliminary hearing to have occurred within the timeframe pleaded in the information.'"
(People v. Jones (1990) 51 Cal.3d 294, 317 (Jones).) The Attorney General relies on
Jones, arguing that because its allows generic testimony to bind over and convict resident
child molesters, even when the victim can only testify in a general way as to what
occurred over a lengthy period and cannot specifically recall specific incidents of
molestation or their dates, we should treat Detective Gray's testimony in the same
manner. The Attorney General is asking for a much too broad application of Jones.
Jones allows generic testimony at a preliminary hearing when a victim is unable to
precisely identify the time and place of a molestation as long as the victim can give a date
range for when the assaults occurred and offer specific details as to the kinds and number
of sexual acts that occurred. (Id. at pp. 317-318.) Jones does not provide support for
conviction on charges not supported by evidence presented at the preliminary hearing.
(See Burnett, supra, 71 Cal.App.4th at p. 175.)
15
Because defendant could not be convicted upon a charge not supported by the
evidence presented at the preliminary hearing, defendant's trial counsel acted
ineffectively in failing to object to the amended information, which alleged four separate
acts of oral copulation. (See Burnett, supra, 71 Cal.App.4th at p. 181.) As in Burnett,
there was no tactical reason or advantage in permitting the prosecution to pursue four
counts of oral copulation. Because defendant was convicted on all four counts, counsel's
error was plainly prejudicial. We therefore reverse defendant's conviction on the oral
copulation counts, counts 4, 5, 6 and 20.4
II
Next, we turn to defendant's confrontation clause contention. As we have noted, at
trial, Dr. Young, a forensic pediatrician who examined Jane Doe, testified to discovering
physical signs of sexual abuse. Dr. Young further testified that she showed her report
and photographs of Jane's genitals to colleagues who concurred with her findings.
Defendant claims that Dr. Young's reference to her colleague's opinions violated his right
to confront testimonial witnesses under the Sixth Amendment to the United States
Constitution and that Dr. Young's reference was also inadmissible hearsay under the
Evidence Code. As we explain, Dr. Young's colleagues' statements concurring with her
4 Each of the four oral copulation counts alleged in the information is set forth in the manner permitted under Jones: each alleges that an act of oral copulation occurred "[o]n or about August 28, 2006 through August 27, 2011." There is no dispute the evidence supports defendant's convictions on at least three of these counts and having found that a fourth should not have been pled, we need not and do not reach the question of whether the evidence at trial supported conviction on a fourth count. Given the similar manner in which the counts have been pled, we leave it to the parties and the trial court on remand to determine which one of the four oral copulation counts should be dismissed and on which of the remaining three counts judgment should be entered again and defendant resentenced. 16
opinions were not testimonial within the meaning of the confrontation clause. Moreover,
as a description of the process by which Dr. Young reached her expert conclusions, the
statements were not subject to exclusion as hearsay.
A. Additional Factual Background
Roughly a month after defendant's molestation of Jane, the forensic examination
was performed at the CAC. The CAC is an outpatient facility for children who have been
abused or are suspected of having been abused. The CAC is a centralized facility that
provides a range of services for abused children in San Bernardino County and is a
partnership between a number of agencies and entities in the county. The CAC has
agreements and memoranda of understanding with various law enforcement agencies in
San Bernardino County. The CAC was conceived to reduce the stress caused to child
abuse victims by reducing the number of adults to whom they must disclose the details of
their abuse. On-site social workers conduct forensic interviews of potential victims.
Forensic medical examinations are conducted on site by doctors and nurse practitioners
from the University of Loma Linda Children's Hospital. Victims involved in
investigations being conducted by law enforcement are brought to the CAC and given a
forensic examination paid for by law enforcement agencies.
The forensic medical examinations conducted on victims are comprehensive.
Physicians examine the eyes, ears and nose and listen to their patients' hearts and lungs.
The genitals are examined using a large magnifying device called a colposcope.
The examination of Jane was conducted on October 27, 2011 by Dr. Young. Dr.
Young testified that she had performed thousands of such examinations in the past and
had testified in court over 100 times.
17
During and after the examination, Dr. Young completed a report of her findings
using a standardized form known as a Cal EMA 925. Jane did not see a forensic
interviewer at the CAC because she had already described defendant's abuse of her to
officers of the San Bernardino Police Department. Dr. Young had access to the police
report. The cost of the examination was paid by the San Bernardino Police Department
under the terms of a memorandum of understanding between the CAC and the police
department.
During the examination, Dr. Young asked Jane if she had experienced any
physical symptoms. Jane reported to Dr. Young that she would sometimes experience a
burning sensation while urinating after molestations as well as itching and vaginal
discharge. She also reported being constipated and nauseous. Dr. Young examined
Jane's genitals and noted "dimpling" of the skin at the base of the hymen and an
"irregularly-shaped area in the base of the fossa,[5] like matted down skin with a
hypopigmented scar." Dr. Young considered this to be a definite sign of trauma caused
to Jane's genitals by some kind of penetration, though Dr. Young could not testify as to
exactly what caused the trauma to Jane's genitals. The doctor also noticed finger like
projections on one edge of Jane's hymen. Dr. Young examined Jane's anus and found no
signs of abuse. Dr. Young testified that her findings were not dispositive of the
possibility that Jane had been anally penetrated and that most victims who have been
sodomized show no physical signs. In her report, Dr. Young recorded her findings
regarding the genitals as being abnormal and "[d]efinite evidence of sexual abuse or
5 The fossa navicularis is a part of the hymen. 18
and/or sexual contact." During the exam, Dr. Young took photographs of Jane's genitals
and drew diagrams in the report.
Dr. Young testified that she routinely consulted with other medical professionals
on her team regarding her findings when filling out such reports, usually on the same day
as the exam. Dr. Young also participated in weekly review sessions where the medical
staff would meet and discuss their cases from the past week.
While testifying at trial, the following exchange occurred between the prosecutor
and Dr. Young:
"Q [prosecutor] Did you review those photographs with any other medical
professionals in your facility?
"A [Dr. Young] Yes.
"Q And who is that?
"A Dr. Claire Sheridan, Dr. Mark Massey, and then either both or one of the nurse
practitioners.
"Q Did they agree with your impression?
"[Defense counsel]: Objection, Your Honor, hearsay.
"THE COURT: It is hearsay, however, experts are allowed to consider things
outside of the record and the jury is told about those items so they can evaluate the
expert's opinion. [¶] So you can answer.
"THE WITNESS [Dr. Young]: Yes, they did agree."
On cross examination, Dr. Young testified that she "gave the photograph to other
child abuse experts and they agreed with the findings of the scar." She shared her
findings with her team, which is composed of three doctors, including her, and two nurse
19
practitioners. Dr. Young testified that she was uncertain as to which members of her
team were present to review her findings, but she knew for certain that Dr. Sheridan was
present to review her findings. On redirect, Dr. Young testified that she had recently
spoken with Dr. Sheridan and reviewed the photographs.
B. Confrontation Clause Jurisprudence
Our current Sixth Amendment jurisprudence emanates from the United States
Supreme Court's ruling in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The
high court had previously construed the confrontation clause as allowing the admission of
an out-of-court statement as evidence if the statement had "particularized guarantees of
trustworthiness." (Ohio v. Roberts (1980) 448 U.S. 56, 66.) Crawford overturned this
standard, finding that the Sixth Amendment completely barred the admission of
testimonial out-of-court statements unless the witness was unavailable to testify and the
defense had a prior opportunity to cross-examine the witness. Justice Scalia, writing for
the majority, stated that "'[t]estimony,' in turn, is typically '[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.' [Citation.] An
accuser who makes a formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does not." (Crawford, at p.
51.) Justice Scalia offered the following nonexclusive list of items considered
testimonial: "'[E]x parte in-court testimony or its functional equivalent—that is, material
such as affidavits, custodial examinations, prior testimony that the defendant was unable
to cross-examine, or similar pretrial statements that declarants would reasonably expect
to be used prosecutorially,' . . . 'extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or confessions,'
20
[citation];statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later trial,'
[citation]." (Id. at pp. 51-52.)
In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 (Melendez-Diaz), a
laboratory's certificates of analysis were introduced as evidence in a prosecution for
cocaine distribution and trafficking. The certificates were sworn statements that
laboratory testing had shown a substance recovered from defendant's car was cocaine.
(Id. at p. 308.) The court found the certificates were affidavits and, thus, testimonial. (Id.
at p. 310.) The majority opinion noted that the certificates, which affirmed that the
substance examined by the lab was in fact cocaine, served the same purpose that live
testimony from the examiners would have and that the examiners would have been aware
that the sworn statements they were making would have been used for prosecution. (Id.
at pp. 310-311.)
In his concurring opinion, Justice Thomas stated: "'[T]he Confrontation Clause is
implicated by extrajudicial statements only insofar as they are contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'"
(Melendez-Diaz, supra, 557 U.S. at p. 329, italics added (conc. opn. of Thomas, J.).)
Justice Thomas concurred in the court's opinion because he regarded the certificate as an
affidavit. (Id. at p. 330 (conc. opn. of Thomas, J.).)
The high court again addressed the issue of when a nontestifying witness's
statement is testimonial in Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct.
2705]. As in Melendez-Diaz, in Bullcoming the prosecution introduced at trial a
certificate prepared by a nontestifying laboratory analyst. This certificate stated that
21
blood samples taken from the defendant showed he had blood alcohol levels above the
legal limit. (Bullcoming, supra, 131 S.Ct. at p. 2709.) Unlike the affidavit in Melendez-
Diaz, in Bullcoming the statement contained in the certificate was not sworn before a
notary public. (Ibid.) The court found this distinction insignificant. The court said the
certificate was "'formalized' in a signed document" that made reference to New Mexico
court rules providing "for the admission of certified blood-alcohol analyses." (131 S.Ct.
at p. 2717.) These "formalities" were, in the court's view, "more than adequate" (ibid.) to
qualify the laboratory certificate as testimonial, and hence inadmissible.
The last and most relevant of the United States Supreme Court cases to address the
question of what constitutes out-of-court testimony is Williams v. Illinois (2012) 567 U.S.
___ [132 S.Ct. 2221] (Williams). The case involved the kidnapping, robbery and rape of
a Chicago woman. (132 S.Ct. at p. 2229.) Semen obtained from a vaginal swab of the
victim was sent by state police to Cellmark, a private laboratory based in Maryland. At
trial, Sandra Lambatos, a forensic expert with the Illinois State Police, testified as an
expert witness for the prosecution. She testified that Cellmark had tested the semen and
developed a DNA profile that was sent back to the state police. The Cellmark DNA
profile matched a DNA profile the state police lab had created from a blood sample taken
from the defendant after an arrest for an unrelated offense. The DNA report prepared by
Cellmark was not entered into evidence. (Id. at pp. 2229-2230.)
The court upheld the admission of Lambatos's statement by a five-to-four vote.
Justice Alito wrote a plurality opinion for himself, Chief Justice Kennedy and Justice
Breyer, while Justice Thomas authored a concurring opinion that heavily criticized the
plurality's rationale but concurred in the result. Justice Kagan wrote a dissent, which was
22
joined by Justice Scalia, the author of the majority opinion in Crawford, and Justices
Ginsburg and Sotomayor.
Justice Alito's plurality opinion in Williams set forth two rationales for its
conclusion the Cellmark report was not testimonial: (1) Lambatos did not testify to the
truth of the Cellmark report, and (2) the report was not prepared to target an identified
suspect. As to the first rationale, Justice Alito wrote that the federal and Illinois rules of
evidence allow a witness to offer an out-of-court statement, not for the truth of the matter,
but solely to explain the basis for the expert's opinion. Lambatos did not make any
warrant to the truth of the report, which was not entered into evidence. She only stated
that the report contained a DNA profile that matched the defendant's. (Williams, supra,
132 S.Ct. at p. 2235.)
As to the second rationale, Justice Alito wrote: "The abuses that the Court has
identified as prompting the adoption of the Confrontation Clause shared the following
two characteristics: (a) they involved out-of-court statements having the primary purpose
of accusing a targeted individual of engaging in criminal conduct and (b) they involved
formalized statements such as affidavits, depositions, prior testimony, or confessions."
(Williams, supra, 132 S.Ct. at p. 2242.)
The plurality opinion noted that no suspect was known or identified when the
semen samples were tested or when the DNA profile produced by Cellmark was tested
against the state database. (Williams, supra, 132 S.Ct. at pp. 2243-2244.) According to
Justice Alito, the primary purpose of the testing was to stop an ongoing emergency by
indentifying a rapist who was still at large, not to incriminate a known and targeted
suspect. (Ibid.) As such, there was little risk that any of the Cellmark technicians would
23
have falsified evidence as they did not know whose DNA they were sampling or its exact
purpose. (Ibid.)
In his concurrence, Justice Thomas found that the Cellmark report was
nontestimonial evidence "solely because Cellmark's statements lacked the requisite
'formality and solemnity' to be considered '"testimonial"' for purposes of the
Confrontation Clause." (Williams, supra, 132 S.Ct. at p. 2255 (conc. opn. of Thomas,
J.).) Justice Thomas stated that "the Confrontation Clause reaches '"formalized
testimonial materials,"' such as depositions, affidavits, and prior testimony, or statements
resulting from '"formalized dialogue,"' such as custodial interrogation." (Id. at p. 2260
(conc. opn. of Thomas, J.).) "The Cellmark report lacks the solemnity of an affidavit or
deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the
report attest that its statements accurately reflect the DNA testing processes used or the
results obtained. . . . The report is signed by two 'reviewers,' but they neither purport to
have performed the DNA testing nor certify the accuracy of those who did. . . . And,
although the report was produced at the request of law enforcement, it was not the
product of any sort of formalized dialogue resembling custodial interrogation." (Ibid.)
Justice Thomas joined the dissent in rejecting the plurality's view that the
statements regarding the Cellmark report were admissible because the testimony was not
offered to prove the truth of the matter. (Williams, supra, 132 S.Ct. at p. 2257 (conc.
opn. of Thomas, J.).) "[S]tatements introduced to explain the basis of an expert's opinion
are not introduced for a plausible nonhearsay purpose. There is no meaningful distinction
between disclosing an out-of-court statement so that the factfinder may evaluate the
expert's opinion and disclosing that statement for its truth." (Ibid.)
24
Justice Thomas also criticized the plurality's invocation of a "primary purpose
test" based upon whether a known suspect is being targeted as lacking "any grounding in
constitutional text, in history, or in logic." (Williams, supra, 132 S.Ct. at p. 2262 (conc.
opn. of Thomas, J.).) Justice Thomas agreed that for a statement to be testimonial, a
"declarant must primarily intend to establish some fact with the understanding that his
statement may be used in a criminal prosecution. [Citation.] But this necessary criterion
is not sufficient, for it sweeps into the ambit of the Confrontation Clause statements that
lack formality and solemnity." (Id. at p. 2261 (conc. opn. of Thomas, J.).) Justice
Thomas further criticized the plurality's "primary purpose test" stating: "There is no
textual justification, however, for limiting the confrontation right to statements made
after the accused's identity became known." (Id. at p. 2262 (conc. opn. of Thomas, J.).)
The California Supreme Court applied the principles set forth in Williams in
People v. Lopez (2012) 55 Cal.4th 569 (Lopez) and People v. Dungo (2012) 55 Cal.4th
608 (Dungo). In Lopez, prosecutors introduced into evidence a laboratory analyst's report
on the blood alcohol level of the defendant. The analyst who prepared the report did not
testify. A colleague from the lab testified in his place. (Lopez, at p. 573.) The court
found most of the lab report itself was nontestimonial because it consisted of data
generated by a machine rather than any statement by the nontestifying analyst. (Id. at
p. 583.) However, in addition to the data recorded in the report, the nontestifying analyst
made notations on the first page of the report which indicated that the blood sample had
come from the defendant. The court found that these notations posed a "more difficult
question" than the mechanically generated data. (Ibid.) "Of significance here is the
indication on page 1 of nontestifying analyst Peña's laboratory report that defendant's
25
blood sample was labeled with laboratory No. 070–7737, which was entered by
laboratory assistant Constantino. Based on that labeling and the machine-generated
results for blood sample No. 070–7737, prosecution expert witness Willey gave his
independent opinion—reflecting his 'separate abilities as a criminal analyst'—that
defendant's blood sample contained 0.09 percent alcohol. It is undisputed that
Constantino's notation linking defendant's name to blood sample No. 070–7737 was
admitted for its truth. (Compare Williams, supra, 567 U.S. at p. ___ [132 S.Ct. 2221], in
which the plurality opinion, Justice Thomas's concurring opinion, and the dissenting
opinion disagreed on whether the pertinent evidence was admitted for its truth.) Thus,
the critical question here is whether that notation is testimonial hearsay and hence could
not be used by the prosecution at trial." (Lopez, at p. 584.)
The court then determined that the subject notations were not testimonial because
they lacked formality: "The notation in question does not meet the high court's
requirement that to be testimonial the out-of-court statement must have been made with
formality or solemnity. (See Davis v. Washington [(2006)] 547 U.S. [813,] 830, fn. 5
['formality is indeed essential to testimonial utterance']; Melendez-Diaz, supra, 557 U.S.
at p. 310 [stressing that each of the laboratory certificates determined to be testimonial
was 'a "'solemn declaration or affirmation'"']; Bullcoming, supra, 564 U.S. at p. ___ [131
S.Ct. at p. 2717] [the laboratory certificate found to be testimonial was '"formalized" in a
signed document' that referred to 'rules' that made the document admissible in court.)
Although here laboratory analyst Peña's initials appear on the same line that shows
defendant's name and laboratory assistant Constantino's initials appear at the top of the
page to indicate that he entered the notation that defendant's blood sample was given
26
laboratory No. 070–7737, neither Constantino nor Peña signed, certified, or swore to the
truth of the contents of page 1 of the report. The chart shows only numbers,
abbreviations, and one-word entries under specified headings. Thus, the notation on the
chart linking defendant's name to blood sample No. 070–7737 is nothing more than an
informal record of data for internal purposes, as is indicated by the small printed
statement near the top of the chart: 'for lab use only.' Such a notation, in our view, is not
prepared with the formality required by the high court for testimonial statements."
(Lopez, supra, 55 Cal.4th at p. 584, italics added.)
In rejecting the defendant's argument that the notations were like the documents in
dispute in Melendez-Diaz and Bullcoming, the court in Lopez emphasized that the
disputed notations lack any indicia of formality: "Defendant argues that nontestifying
analyst Peña's laboratory report is indistinguishable from the laboratory certificates that
the high court determined to be testimonial in Melendez-Diaz and Bullcoming. Not so.
In Melendez-Diaz, 'the certificates were sworn to before a notary . . . ' by the testing
analysts who had prepared the certificates. (Melendez-Diaz, supra, 557 U.S. at p. 308.)
And in Bullcoming, the laboratory analyst's certificate regarding the result of his analysis
was '"formalized" in a signed document' that expressly referred to court rules providing
for the admissibility of such certificates in court. (Bullcoming, supra, 564 U.S. at p. ___
[131 S.Ct. at p. 2717].) Such formality is lacking here." (Lopez, supra, 55 Cal.4th at pp.
584-585.)
The majority opinion in Lopez was written by Justice Kennard and had the
concurrence of the Chief Justice and Justices Baxter, Werdegar and Chin. Justice
Corrigan wrote a separate opinion in which she concurred in the result because she found
27
that the analyst's notations were not written for the purpose of providing evidence at trial
but were "primarily 'for the administration of an entity's affairs.'" (Lopez, supra, 55
Cal.4th at p. 590 (conc. opn. of Corrigan, J.).)6 Justice Liu dissented. In analyzing the
Supreme Court's confrontation clause jurisprudence, Justice Liu concluded that only
Justice Thomas believed that out-of-court statements need to be formalized in the manner
required by the Lopez majority and that his sole opinion did not represent binding
authority. (Lopez, at p. 594 (dis. opn. of Liu, J.).) Justice Liu further concluded that
because the report and the notations were prepared by a county crime laboratory, they
were indisputably prepared as evidence to be offered at defendant's trial and subject to the
limitations of the confrontation clause. (Id. at pp. 602-603 (dis. opn. of Liu, J.).)
In Dungo, the court considered the question of whether a testifying expert could
rely upon an autopsy report prepared by a nontestifying expert witness. The court stated:
"First, to be testimonial the statement must be made with some degree of formality or
solemnity. Second, the statement is testimonial only if its primary purpose pertains in
some fashion to a criminal prosecution. The high court justices have not, however,
agreed on what the statement's primary purpose must be." (Dungo, supra, 55 Cal.4th at
p. 619.) In analyzing for formality and solemnity, the court, relying upon a footnote from
Melendez-Diaz regarding medical reports, divided statements in medical reports into two
categories: "(1) statements describing the pathologist's anatomical and physiological
observations about the condition of the body, and (2) statements setting forth the
pathologist's conclusions as to the cause of the victim's death." (Dungo, at p. 619.)
6 Justices Baxter, Werdegar and Chin concurred in Justice Corrigan's opinion. 28
Statements from the first category are more akin to statements of objective fact while the
latter are more formal. (Id. at pp. 619-620.) The court concluded that the statements in
the report the testifying expert relied upon were statements describing the physical
condition of the body and were thus informal. (Ibid.)
The court also analyzed the issue of what the "primary purpose" of the autopsy
was as it pertained to confrontation clause analyses. The court found the primary purpose
of the autopsy was not to provide evidence for the police investigation. Even though a
police detective was present, autopsies are routinely performed for various types of
deaths other than suspected homicides and fulfill functions other than proffering evidence
for police investigations, such as aiding in insurance investigations or simply satisfying
curiosity regarding an unusual death. (Dungo, supra, 55 Cal.4th at p. 621.)
C. Analysis
With this legal history in mind, we now consider whether the opinions of Dr.
Young's colleagues, which supported her conclusions, were testimonial. Because it had
the concurrence of five justices, under the principle of stare decisis the holding and
rationale of the court in Lopez are plainly binding on us. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455-456.) Under Lopez, the unwritten statements
that Dr. Young's colleagues made to her, the substance of which she later conveyed to the
jury, in no sense met the standard of formality and solemnity required by the court in
Lopez. If anything, the oral statements in dispute here were less formal or solemn than
the written notations in dispute in Lopez.
29
Moreover, under the principles set forth in Justice Corrigan's concurring opinion in
Lopez, which was also supported by a majority of the court,7 the remarks at issue here
were not testimonial. As related by Dr. Young, her colleague's statements were made to
her either in response to her request that they review her findings or in connection with a
weekly review of the CAC's cases, which the CAC regularly conducts. In either case, it
is clear from Dr. Young's testimony that her colleagues' opinions were not solicited for
the purpose of presenting those opinions as evidence but only for the internal
administrative purpose of validating Dr. Young's own conclusions. As such, they were
not testimonial. (Lopez, supra, 55 Cal.4th at p. 590 (conc. opn. of Corrigan, J.).)
D. Prejudice
As our discussion of current confrontation clause jurisprudence indicates, this area
of the law is developing and is not yet entirely settled. Thus, although under Lopez no
violation of defendant's rights occurred, we nonetheless consider whether, if an error
occurred, it was harmless.
Whenever the constitutional rights of a defendant are violated, the prosecution
bears the burden of demonstrating beyond a reasonable doubt that the error did not
contribute to the defendant's conviction. (Chapman v. California (1967) 386 U.S. 18,
24.) "The inquiry, in other words, is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the error." (Sullivan v.
Louisiana (1993) 508 U.S. 275, 279.) "'"'To say that an error did not contribute to the
7 See footnote 6, ante. 30
ensuing verdict is . . . to find that error unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus
is what the jury actually decided and whether the error might have tainted its decision."'"
(People v. Mercado (2013) 216 Cal.App.4th 67, 91, quoting People v. Pearson (2013) 56
Cal.4th 393, 463.)
The alleged error in this case was unquestionably unimportant in light of the
overall record at trial. Dr. Young's answer to the question regarding whether her
colleagues agreed with her was a small part of her overall testimony and of the case
against defendant. The direct examination of Dr. Young by the prosecutor runs for 47
pages in the trial transcript. The exchange between the prosecutor and Dr. Young
regarding her colleagues' statements to her takes up less than a page. In closing
argument, neither the prosecution nor defense counsel discussed Dr. Young's reference to
her colleagues' opinions. Rather, as we have noted, in an apparent effort to establish
credibility with the jury, at the beginning of her argument to the jury defendant's counsel
conceded that defendant was guilty of molesting Jane and that his conduct was horrific.
Counsel's concession was warranted in light of the overwhelming evidence
defendant molested Jane. Defendant confessed to law enforcement officers that he
touched Jane's genitals on multiple occasions and to using a web camera to observe Jane
in the nude. A police search of the house partially verified Jane's testimony by
recovering both a web camera and two firearms that Jane testified to defendant
possessing and threatening her with. Importantly, the text message from defendant to
Jane, in which he announced his intent to force himself sexually upon her, was also
entered into evidence.
31
Dr. Young's findings supported Jane's testimony that defendant had sexually
penetrated her vagina, but it was merely circumstantial evidence as Dr. Young could not
testify as to what exactly caused the injury or who caused it, only that the injury was a
sign of sexual abuse. Dr. Young's testimony did support Jane's claim that defendant
penetrated her vagina with his fingers, but it also supported her testimony that defendant
raped her. The jury could not reach a verdict as to the rape charges, yet it convicted
defendant of orally copulating and anally penetrating Jane even though the only evidence
to support those charges was Jane's testimony and defendant had expressly denied
committing those acts. In sum, given the entire record, testimony regarding the opinions
of Dr. Young's colleagues was of little or any consequence to the final verdict.
III
We also reject defendant's alternative argument that, in any event, Dr. Young's
reference to her colleagues' confirmation of her conclusion was inadmissible hearsay.
"The Evidence Code states that an expert witness may, on direct examination, provide the
reasons for an opinion as well as the information upon which it is based, even if that
information is inadmissible. (Evid. Code, §§ 801, subd. (b), 802.) In analyzing Evidence
Code section 802, our Supreme Court has allowed an expert to testify about basis
evidence consisting of out-of-court statements. In People v. Catlin (2001) 26 Cal.4th 81,
137, the court stated, '"[a]n expert may generally base his opinion on any 'matter' known
to him, including hearsay not otherwise admissible . . . . [Citations.] On direct
examination, the expert may explain the reasons for his opinions, including the matters he
considered in forming them. . . ." [Citations.]' [Citations.] This basis evidence is
32
inadmissible, however, for its truth. [Citations.]" (People v. Hill (2011) 191 Cal.App.4th
1104, 1128.)
Admittedly, it is preferable that the trial court directly and expressly instruct the
jury that such evidence is not offered for its truth. (See People v. Williams (2009) 170
Cal.App.4th 587, 622-623.) Here, the trial court, in ruling on defendant's objection, did
implicitly refer to that limitation by noting that the opinions of Dr. Young's colleagues
were admissible for the purpose of evaluating Dr. Young's opinion. In light of the fact
that on their face her colleagues' opinions added nothing substantive to Dr. Young's own
opinion, the trial court's description of them as a means of evaluating Dr. Young's
testimony was self-evident and, in this particular context, sufficient to prevent the jury
from considering them as substantive evidence admitted for its truth.
Moreover, any error in failing to more fully advise the jury as to the limited use of
the evidence was, as we discussed with respect to the confrontation clause, harmless.
IV
Finally, defendant claims that his convictions on counts 21 and 22 arise from the
same single incident and intent of touching Jane's vagina with his finger, and, thus, his
sentence on either count 21 or count 22 should be stayed under section 654. We affirm
defendant's consecutive sentences arising from his conviction on counts 21 and 22.
A. Additional Factual Background
In a videotaped interview with a police officer that was shown to the jury, Jane
stated that the last time defendant abused her occurred when he picked her up from
school, took her home and confronted her because he had discovered her aunt's business
card in her room. When they got home, defendant grabbed Jane, took her into his
33
bedroom, forced her onto his bed and got on top of her. Defendant stuck his hand down
the front of Jane's jeans and began rubbing her genitals. He questioned her as to whether
she had told anyone about the molestations, and Jane replied that she had not. Jane tried
to get away from him by "dropping down." In response, defendant threatened to rape or
sodomize Jane with his penis and make it hurt if she did not stop resisting.
During the detective's questioning about this incident, the detective and Jane
engaged in the following colloquy:
"[Detective]: Ok when stuck his hands down your pants and you said he touched
your vagina, did he put any fingers in your vagina?
"[Jane]: (Nods head no)
"[Detective]: No, so when he put his hand down there what exactly did he do with
his hand?
"[Jane]: He was rubbing."
At trial, Jane Doe testified as follows regarding the last time she was molested by
defendant:
"A [Jane Doe] It was on a school day on a Thursday before he was arrested, on
that Friday. And he picked me up and he took me to his bedroom again, and then he was
-- he put his hands down my vagina and then he started rubbing it and he stuck his fingers
in it and then after that --
"Q [prosecutor] He did stick his fingers in it on that time, the time right before
you told?
"A Yes.
"Q And what did it feel like that time?
34
"A It was painful.
"Q And what else happened?
"A And after that I was telling him to stop and then I was like trying to get his
hands out. So I was, like, dropped to the floor and then he was like if you don't quit it, I
will take it out and stick it in and make sure it hurts.
"Q Were you saying anything to him?
"A I was yelling at him to stop."
The prosecution charged defendant with two counts related to the foregoing
incident. Count 21 charged defendant with committing sexual battery by restraint
(§ 243.4, subd. (a)), and count 22 charged him with committing a lewd act upon a minor.
(§ 288, subd. (c)(1)).
The jury convicted defendant on both charges, and defendant was sentenced to a
consecutive term of two years for the sexual battery with restraint conviction and a
consecutive term of one year four months for the lewd conduct conviction.
B. Legal Principles
Under Section 654, a defendant may be convicted of multiple crimes arising from
the same single act or indivisible transaction, but he or she may be punished only for one
such act. (People v. Alvarez (2009) 178 Cal.App.4th 999, 1006, citing People v. Saffle
(1992) 4 Cal.App.4th 434, 438.) The divisibility of a series of criminal acts is contingent
on whether the acts were meant to serve a single objective or whether the criminal
entertained multiple separate objectives. (People v. Alvarez, supra, at p. 1006, citing
Neal v. State of California (1960) 55 Cal.2d 11, 19.)
35
In cases of sexual assault, the courts have found a desire to obtain sexual
gratification to be too broad to serve as a common objective when multiple sexual
assaults are committed in close proximity to one another. (People v. Perez (1979) 23
Cal.3d 545, 552.) Assertion of a sole intent and objective to achieve sexual gratification
is akin to an assertion of a desire for wealth as the sole intent and objective in committing
a series of separate thefts. To accept that such a broad, overriding intent and objective
precludes punishment for otherwise clearly separate offenses would violate the statute's
purpose to insure that a defendant's punishment will be commensurate with his
culpability. (Ibid.)
Thus, a defendant may be punished for multiple sexual assaults if "each offense
was a separate and distinct act" and not merely incidental to or a necessary predicate to
the other offenses. (People v. Perez, supra, 23 Cal.3d at p. 553.) For instance, acts of
sodomy and rape committed in close sequence will count as separate punishable offenses
because neither sex act is merely an incidental step to achieving the other act. On the
other hand, removing a victim's clothes or applying lubricant to an area of the body to be
copulated will not be punishable as separate crimes because these are simply necessary
and incidental steps to raping the victim. (People v. Alvarez, supra, 178 Cal.App.4th at p.
1006.) Section 654 will not protect molesters from punishment when the "act is
'preparatory' only in the general sense that it may be intended to sexually arouse either the
perpetrator or the victim." (People v. Madera (1991) 231 Cal.App.3d 845, 855.) "'It is
defendant's intent and objective, not the temporal proximity of his offenses, which
determine whether the transaction is indivisible.'" (Ibid.)
36
Importantly, whether multiple convictions were part of an indivisible transaction is
primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)
Thus, we review findings on divisibility in the light most favorable to the People and
presume existence of every fact the trier could reasonably deduce from the evidence.
(See People v. Osband (1996) 13 Cal.4th 622, 690, 730.)
C. Analysis
The record contains evidence that during the course of defendant's last molestation
of Jane, although they were not separated by a lengthy period of time, two distinct acts
were committed by defendant: (1) defendant put his hands down Jane's pants and rubbed
her vagina, and (2) he then painfully stuck his finger in her vagina. Given this record, the
question we must resolve is whether defendant's rubbing of Jane's vagina was merely
incidental to penetrating Jane's vagina with his finger or a separate act with a separate
objective.
Defendant of course had to touch Jane's outer genitalia to penetrate her vagina.
However, Jane did not simply testify that defendant touched her vagina before sticking
his fingers inside her. Jane testified that defendant rubbed her vagina. Her statement that
defendant rubbed her vagina indicates that he was moving his fingers back and forth over
the surface of Jane's outer genitalia, caressing or massaging it, without any penetration.
Such gratuitous touching would not be necessary to accomplish the task of penetrating
Jane vaginally with a finger. In light of the questions defendant was asking Jane during
the assault and Jane's effort to stop the assault, a finder of fact could reasonably infer that
defendant initially rubbed Jane's outer genitals to either sexually arouse Jane or himself
and that the later digital penetration was separate from any arousal and was intended to
37
hurt and punish Jane because defendant was not satisfied with her responses to his
questions. (See, e.g., People v. Jimenez (2002) 99 Cal.App.4th 450, 456-457 [separate
convictions supported by evidence of touching genitals followed by evidence of
penetration].)
Because the two acts defendant committed support a finding that the first was not
simply incidental to the second, they both were properly punished.
DISPOSITION
Defendant's convictions as to counts 4, 5, 6 and 20 are reversed with directions
that on remand the trial court, after considering any arguments of the parties, dismiss one
of those counts and sentence defendant on the remaining three counts and enter judgment
accordingly. In all other respects, the judgment of conviction is affirmed.